Dean, assigned Hearing Officer of the Division of Administrative Hearings. This matter came on to be heard upon the Administrative Complaint filed by the State Board of Medical Examiners against John R. Hood, Jr., M.D. Said Administrative Complaint charged the Respondent with four counts of prescribing Class 2 substances in other than good faith and in the course of his professional practice only, and by violating the statutes of the State and of the United States relating to the practice of medicine or in part regulating the practice of medicine to include the provisions of Section 893.05(1) and Section 458.1201(1)(k), F.S., and 21 C.F.R. 1302.04 and Section 309 of Title 21 U.S.C. 929.
For Respondent: Kirk N. Kirkconnell, Esquire
John R. Hood, Jr., M.D., is a licensed physician holding license number 11175 issued by the State Board of Medical Examiners of Florida.
John R. Hood is a full-time family practitioner having his professional offices at 120 Gatlin Avenue, Orlando, Florida.
On February 10, 1976, John R. Hood, Jr., M.D., was taking no new patients.
Dr. Hood charged $7.50 for an office visit without regard to whether he prescribed any medications for a patient.
Helen Nelson is a thirty-five year old woman with three children residing at 4014 Cambridge Drive and Dr. Hood had been physician to Helen Nelson and her children for approximately four to five years prior to February 10, 1976.
Dr. Hood, as Helen Nelson's physician, had seen and treated her for five years prior to February 10, 1976.
Helen Nelson, during 1975 and 1976, was a paid confidential informant for the Orange County Sheriff's Department whose contact within the Sheriff's Department was David Moore, a Deputy Sheriff.
On February 10, 1976, Helen Nelson had a regular appointment with Dr. Hood which she had set up with the Doctor's office staff.
Helen Nelson has no medical or pharmaceutical training.
On February 10, 1976, Helen Nelson was accompanied to her appointment with Dr. Hood by Terry Davis for whom no prior appointment had been made with the Doctor's office staff.
On February 10, 1976, Helen Nelson had concealed on her person an electronic recording device by which her conversation with Dr. Hood was recorded.
During her appointment on February 10, 1976, Helen Nelson referred Terry Davis to Dr. Hood as a patient.
Upon referring Davis as a patient to Dr. Hood, Helen Nelson represented to Dr. Hood that Terry Davis was her cousin who was visiting her from out of town and staying with her at her residence. She further represented that Terry Davis did not have a local physician and that his doctor had been giving him Biphetamine.
Terry Davis is not a physician and has no medical degree or training.
All information given to Dr. Hood about Terry Davis by Davis and Nelson, other than his name, was untrue.
On February 10, 1976, February 27, 1976, March 16, 1976, and March 25, 1976 Dr. John R. Hood, Jr. personally saw Terry Davis in an examining room of Dr. Hood's professional offices located at 120 Gatlin Avenue, Orlando.
On the occasion of each office visit, Terry Davis was assisted to the examining room by the doctor's office staff.
At no time during the visits with Helen Nelson or Terry Davis did Dr. Hood refer to Quaalude or Biphetamine 20 by their slang or street names.
Dr. John R. Hood saw Terry Davis on February 10, 1976 at approximately 4:05 P.M. Davis was wearing a concealed recording device. Dr. Hood saw Terry Davis as a result of his having been referred to the doctor by Helen Nelson.
Dr. Hood commented on the fact that Helen Nelson had referred him. At that time, Terry Davis told Dr. Hood that he was a bartender and bouncer who kept late hours and needed something to get him going. Davis also told the doctor that he wanted to lose weight. Dr. Hood took Davis's blood pressure and
listened to his chest with a stethoscope, determined from Davis that he drank, and ran several miles each day. Hood advised Davis that his blood pressure was slightly elevated. At the conclusion of the office visit Dr. Hood prescribed thirty Biphetamine 20 capsules and Diuril to control Davis's blood pressure.
Davis paid for the office visit and received a receipt therefor.
On February 27, 1976 Davis again visited Dr. Hood's office by appointment. On this visit, Davis again wore a concealed recording device. After an hour's wait he was called by the nurse who attempted to weigh Davis, but Davis advised her that he had not been weighed before and that he did not want to be weighed this time. He was led by the nurse to the doctor's examining room where Dr. Hood saw him. Dr. Hood told his nurse that he wanted Davis's blood pressure to be taken and wanted Davis to be weighed. Dr. Hood was told by Davis that the girl with whom he was living had been taking his (Davis's) amphetamine capsules. Davis asked the Doctor if he could prescribe some Biphetamine 20 capsules for his girl friend. Dr. Hood asked Davis if the girl was healthy and was told by Davis that she was. Dr. Hood advised Davis that he should not prescribe medications without seeing the girl; however he would prescribe the medication that one time, but that he wanted to see her soon. Dr. Hood wrote out the body of the prescription after which Davis told Hood that the girl's name was Jackie Koch. Davis paid for the visit and received a receipt and left the doctor's office at approximately 3:30 P.M.
On March 16, 1976, Terry Davis saw Dr. John R. Hood by appointment at approximately 2:30 P.M. After a wait of approximately one hour and forty-five minutes, he was weighed by a member of the Doctor's office staff, his blood pressure was taken, and he was seen in the examining room by Dr. Hood. Dr. Hood asked if Davis was still taking his medication and Davis replied that he was. Davis told the Doctor that he would like to have some Quaalude because he was "psyched up" from taking the Biphetamine 20. Davis asked for a prescription for amphetamines for Jackie Koch but Dr. Hood refused stating that she would have to come in herself. Dr. Hood, on the occasion of this visit, prescribed Biphetamine 20, Quaalude and Diuril. Davis paid for the visit, received a receipt and left the Doctor's office.
On March 25, 1976, Terry Davis saw Dr. Hood at approximately 10:30
a.m. without an appointment. After waiting approximately one hour and twenty minutes, he was weighed by a nurse who took his blood pressure and was seen by Dr. Hood in his examining room. Dr. Hood asked Davis what he needed. Davis told Dr. Hood that he wanted some Quaalude and Biphetamine 20. Dr. Hood asked Davis if Davis had taken all the drugs he had prescribed for him on his prior visit in nine days. Davis told Dr. Hood that he had given a party at his apartment and some friends had gotten into his Biphetamines and that this was why he required some more. Dr. Hood advised Davis that Davis should keep his medication more secure. Prior to the Doctor having been told about the loss of the drugs during the party, Dr. Hood had told Davis that he would only prescribe fifteen (15) amphetamines for him; however, after Davis told him about the loss of the drugs at the party, Dr. Hood prescribed thirty (30) amphetamines for him together with Quaalude. On the occasion of this visit, Davis received no Diuril.
During the various visits, Davis's blood pressure was taken on each occasion, and he was weighed on every visit but the first. Dr. Hood never suggested that the prescriptions be filled at a particular drug store. Dr. Hood never increased the dosage of Biphetamine 20 or Quaalude and never prescribed more than one a day. On each visit Dr. Hood recorded information regarding the health of Davis and Davis's responses to his questions on Davis's patient chart.
During the testimony of Terry Davis, Dr. Dennis R. Howard was present in the hearing room. Dr. Howard heard Davis's testimony and reviewed the transcripts of the taped conversations between Dr. Hood and Davis. Dr. Howard was qualified as a medical expert and testified based on the evidence which he had reviewed. In Howard's opinion, Dr. Hood's prescriptions to Davis on February 10 and February 27, 1976 were in good faith. Dr. Howard further stated regarding Davis's visits of March 16 and March 25, 1976, that based upon the evidence and testimony presented he could not form an opinion whether Dr. Hood's prescriptions for Davis were in good faith. It was Dr. Howard's opinion that a doctor-patient relationship was created between Davis and Dr. Hood on Davis's initial visit to Dr. Hood. With regard to Dr. Hood's prescription of Biphetamine 20 for Jackie Koch, Dr. Howard stated that while his opinion was that Dr. Hood had not exercised good faith, there were circumstances in which such a prescription would be in good faith. Dr. Howard clarified that if Koch had been an established patient of Dr. Hood's or if Dr. Hood had believed that she was his patient, the prescription would have been in good faith.
Dr. John R. Hood, Jr. testified regarding the allegations contained in Count 2 relating to his prescription for Jackie Koch. Dr. Hood testified that he had remembered that Davis was living with a female patient of his who had referred Davis to him and when Davis had asked him for the prescription for Biphetamine 20 for his girl friend with whom he was living, that he had thought that she was his patient who had referred him. Dr. Hood stated that he had remembered prescribing Biphetamine 20 to the woman who had accompanied Davis on his first visit. Dr. Hood stated that when Davis identified the girl by name he did not connect the difference in names because he had female patients named Koch. Dr. Hood stated that he refused to give a second prescription because Davis was supposed to bring Koch in and he had not done so.
Dr. Harry Rein, who had been present during the testimony of Terry Davis, Dr. William Howard, and Dr. John R. Hood, was qualified as a medical expert. He testified that he had reviewed the transcript of the tapes of the conversations between Dr. Hood and Davis, and heard the stipulation entered into by the parties, and the testimony of the witnesses. Based upon the evidence which he had heard and reviewed, Dr. Rein stated that if Dr. Hood had thought Davis's girl friend was his patient, in light of the fact that only fifteen (15) capsules of Biphetamine 20 had been prescribed, in his opinion the prescription was in good faith because a doctor-patient relationship would have been preexisting. The existence of that relationship to Dr. Rein was important. However, even in the absence of the preexisting patient relationship, Dr. Rein expressed the opinion that in light of Dr. Hood's inquiries about her health, his knowledge that she had taken amphetamines, the close relationship with Davis, the few capsules prescribed, the direction to have her come in to see him, and his refusal to prescribe for her a second time without seeing her, the prescription was in good faith. Dr. Rein observed that it was not uncommon for physicians to prescribe medication for one of their patients through another who they were seeing where a close relationship existed between the patients.
Dr. William Howard was called as a rebuttal witness by the Board. Dr. Howard had been present during the testimony of Dr. Rein. Dr. Howard stated that the element of bad faith which he saw in Dr. Hood's prescription for Jackie Koch was that a doctor-patient relationship had not been established. In the absence of such a relationship, either preexisting or established by a visit to the doctor's office, such a prescription would be in bad faith. Dr. Howard testified that the confusion of patients and the confusion of treatment of patients by doctors was not uncommon.
Based upon the testimony of the witnesses with regard to Dr. Hood's prescription to Jackie Koch for amphetamines, the Hearing Officer finds that this prescription was issued in good faith. The Hearing Officer finds that in opinions of both medical experts that the prescription was in good faith if Dr. Hood thought that he was prescribing for a patient of his because a patient- physician relationship would have been preexisting. It was the testimony of the Board's expert that it is not unusual for physicians to confuse patients. Both experts stated that it is not unusual for physicians in a family practice to prescribe medication for one member of a family unit through or to a patient they are seeing. The Hearing Officer further finds that the quantity prescribed, the inquiries regarding the state of health of the supposed patient, Dr. Hood's recollection that he had prescribed biphetamines to the woman who had accompanied Davis, and his refusal to further prescribe for the patient without seeing her is indicative of good faith. Considering the expert's opinion and testimony, the testimony of Hood, and the testimony of Davis, the Hearing Officer finds Dr. Hood had formed the opinion, however erroneous, that the person for whom he was prescribing was in fact his patient.
CONCLUSIONS OF LAW
Dr. John R. Hood, Jr., has been charged in the Administrative Complaint with the violation of Section 893.05, Florida Statutes, and thereby violation of Section 458.1201, Florida Statutes. Section 893.05(1) provides that "a practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix or otherwise prepare a controlled substance . . ."
Upon the conclusion of Dr. Howard's testimony, the Board rested its case and the Respondent moved for a ruling by the Hearing Officer whether the allegations in Counts 1 through 4 in the Administrative Complaint had been proven. The Hearing Officer, based upon his consideration of the testimony and the evidence, particularly that of Dr. William Howard, the Board's Expert Witness, ruled that the allegations contained in Counts 1 through 4 as they related to Dr. Hood's prescriptions for Terry Davis were not proven to be not in good faith and not in the course of his professional practice.
The Board's expert was of the opinion that a patient- physician relationship had been established on the initial visit by Davis and therefore all the prescriptions to Davis were in the course of Dr. Hood's professional practice. In the opinion of the Board's Expert, the first two prescriptions by Dr. Hood to Terry Davis were in good faith, and the Board's expert was unable to form an opinion with regard to the latter two prescriptions by Dr. Hood to Terry Davis.
While the Hearing Officer may not be bound by the expert opinion of a witness, he certainly may consider it. The issue of good faith is complex and may often turn upon the practitioner's professional evaluation of both objective and subjective observations of the patient. The Board's expert stated he could not state an opinion on these latter two sets of prescriptions. Based on the foregoing with regard to the allegations against Dr. Hood as they relate to the prescriptions issued for Terry Davis, the Hearing Officer found and restates that finding that the Board failed to prove factually that Dr. Hood did not prescribe for Terry Davis in good faith.
With regard to the prescriptions for Jackie Koch, violation of Section 893.05(1), Florida Statutes, is determined whether a patient-physician
relationship existed between Dr. Hood and the person for whom he prescribed. Both experts testified that if Dr. Hood thought that the person for whom he was prescribing was in fact his patient, then a physician-patient relationship would have existed and Section 893.05(1) would not be violated. Dr. Hood testified that he did think that the person for whom he was prescribing was his patient.
The other evidence presented tends to support and substantiate the Doctor's belief.
Section 893.05, Florida Statutes, relates specifically to good faith. Good faith is honesty of intention and freedom from knowledge of circumstances which ought to put the holder on notice to inquire. Honesty of intent relates to Dr. Hood's mental state at the instant he wrote the prescription in the name of Koch. If Dr. Hood thought she was his patient, then his intent was honest and the prescription was in good faith. As found above, the facts are that Dr. Hood did believe her to be his patient; therefore, Dr. Hood prescribed in good faith.
